Saturday, June 27, 2015

It depends on what the meaning of the word "is" is

For the last couple of days, I've been attending the annual conference of Reform Sex Offender Laws. RSOL brings together lawyers, scholars, activists, sex offenders and, especially, the unrecognized victims of the crimes of sex offenders, their families, to teach and learn and talk about how to do better. RSOL isn't trying to get sex offenses made legal, doesn't condone sex with children. It's not saying rapists shouldn't be punished or child pornography should be freely available. It wants to reform, not abolish. But it knows that much of what the media tells us about those who commit sex offenses is wrong.

And that the boogeyman we're told to fear, really, the hundreds of thousands of them, are no more real than Jason.It's not that there aren't folks who do, who have done, monstrous things. It's not that there aren't some dangerous people out there. It's that people who've done monstrous things aren't monsters, they're people. And not everyone who's done something we abhor is actually dangerous.

So for two and a half days, in formal presentation, in a panel discussion, and over lunch and coffee and later drinks at the hotel bar, I've been trying to explain just how it is that the law so often makes no sense. That the words of the Constitution so often provide only illusory promises of fairness and justice. That despite what we were taught in 4th grade civics, our is The Law of Rule at least as much as it is The Rule of Law.Which brings me to Thursday morning.That's when Chief Justice Roberts wrote for a 6 Justice majority in King v. Burwell, that

And it's an example, if one were needed, that when Holmes (that's Oliver Wendell, Jr., not Sherlock) said

The life of the law has not been logic; it has been experience,

He was making a significant point. Logic has little to do with it. Want another example? Also from Thursday morning? This time it wasn't the D.C. 9 but the Columbus 7.

Michael Keenan, they said (opinion here), must be tried a third time. Oh, sure, there's no physical evidence connecting him to the crime. Oh, sure, the lone admitted eyewitness is dead. And oh, sure, the case gets to this point now only because the first two trials and death sentences were tainted by the very substantial exculpatory evidence that the prosecutors intentionally concealed from Keenan and his lawyers for some 20 years because, gee, if they'd passed it on, as the Constitution required them to, Keenan would likely - and properly - have been acquitted.

But damn, they wanted that sumbitch executed. Whatever it took.

But wait, a third trial? Isn't that double, or maybe triple jeopardy? Isn't there something in the Constitution about that? Why yes, there is. In the Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Keenan, of course, has already been twice put in jeopardy. And now it's to happen a third time. I've written about this before. As I said then,

`I don't know what you mean by "glory",' Alice said.Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'`The question is,' said Alice, `whether you can make words mean so many different things.'`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.